The International Criminal Court and Consolidation of The Responsibility To Protect As An International Norm

Global Responsibility to Protect 4 (2012) 275–308 brill.
nl/gr2p
The International Criminal Court and

Consolidation of the Responsibility to Protect
as an International Norm
Michael Contarino, Melinda Negrón-Gonzales and Kevin T. Mason

University of New Hampshire at Manchester
mike.contarino@unh.edu
Abstract
Consolidation of R2P as a robust global norm is not yet assured, because of continued dis-
agreement among the powers as to the concept’s appropriate application, and even as to its
meaning. The process of R2P norm consolidation likely will be linked to progress in the
development of the International Criminal Court – another recent initiative of the interna-
tional system focused on atrocity crimes, and itself also in a formative phase. Continued
expansion of ICC membership, ICC effectiveness at bringing atrocity crime perpetrators to
justice, and ICC contributions to developing greater international agreement on the defini-
tion and application of R2P could accelerate norm consolidation. But if key members of the
UNSC remain outside the ICC, and if some major powers continue to seek to circumscribe
both the meaning and the application of R2P in the UNSC, R2P norm consolidation will
remain elusive.
Keywords
International Criminal Court, Responsibility to Protect, human rights, norms, norm lifecy-
cle, constructivism
Introduction
The responsibility to protect (R2P) is a norm-in-formation. While the

UN system has embraced the principle formally and explicitly several
times,1 and authoritative international institutions and widely respected
persons have begun to reference the concept frequently as the basis for
1 A/RES/60/1, 16 September 2005, paragraphs 138-40; S/RES/1674, 28 April 2006;

S/RES/1706, 31 August 2006.
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via Leiden University
276 M. Contarino et al. / Global Responsibility to Protect 4 (2012) 275–308
international actions,2 R2P nevertheless remains controversial.3 Critics of

R2P continue to see it as superfluous or even dangerous,4 and its definition
is not universally agreed upon.5 Several governments, including some
members of the UN Security Council (UNSC, Security Council, or Council),
continue to seek to narrow R2P’s meaning and to resist its application.
Accordingly, we cannot yet take for granted that the R2P principle will
become a robust, clearly-defined, widely-respected international norm.
The prospects for consolidation of the R2P norm will reflect, in part, the
concept’s acceptability to governments. Of particular importance in this
regard will be the five permanent members of the UNSC (P-5), as the
Security Council is a crucial instrument for R2P enforcement. The degree to
which hitherto reticent states come to see the concept as unthreatening,
and perhaps even useful to their respective national interests will depend
in part on the skill of R2P advocates in pressing their case in various inter-
national forums, as well as the extent to which the concept’s ambiguities
and/or potential risks to these states are mitigated by future diplomacy,
events, and decisions by international bodies.
2 Roger Cohen, ‘African Genocide Averted’, The New York Times, 3 March 2008, www
.nytimes.com/2008/03/03/opinion/03cohen.html (All websites cited in this article were
accessed on 4 June 2012); S/RES/1970, 26 February 2011; S/RES/1973, 17 March 2011; The White
House, ‘Letter from the President to the Speaker of the House of Representatives and the
President Pro Tempore of the Senate Regarding the Lord’s Resistance Army’, The White
House press release, 14 October 2011, www.whitehouse.gov/the-press-office/2011/10/14/
letter-president-speaker-house-representatives-and-president-pro-tempore; James Traub,
‘No Apology Necessary’, Foreign Policy, 28 October 2011, www.foreignpolicy.com/articles/
2011/10/28/no_apology_necessary.
3 See, for example, John Bolton, ‘Aspirations Don’t Make Foreign Policy’, The Globe and
Mail, 3 November 2009, www.responsibilitytoprotect.org/index.php/crises/128-the-crisis
-in-burma/1953-john-boltonaspirations-dont-make-foreign-policy; Steve Groves, ‘Obama
Wrongly Adopts U.N. “Responsibility to Protect” to Justify Libya Intervention’, 31 March 2011,
www.heritage.org/research/reports/2011/03/libya-intervention-obama-wrongly-adopts-un
-responsibility-to-protect; David Reiff, ‘R2P, R.I.P.’, The New York Times, 7 November 2011,
www.nytimes.com/2011/11/08/opinion/r2p-rip.html?pagewanted = all.
4 Mary E. O’Connell, ‘Taking Opinio Juris Seriously, A Classical Approach to International
Law on the Use of Force’ in Enzo Cannizzarro and Paolo Palchetti (eds.), International
Customary Law on the Use of Force (Leiden; Boston: Martinus Nijhoff, 2005), pp. 28-9; Noam
Chomsky, ‘Humanitarian Imperialism: The New Doctrine of Imperial Right’, Monthly Review
60/4 (2008). See also Ramesh Thakur and Mary E. O’Connell, ‘The R2P Controversy’, March
2008, www.globalpolicy.org/component/content/article/154/26068.html.
5 See Jennifer Welsh, ‘Implementing the “Responsibility to Protect”’, Oxford Institute for
Ethics, Law, and Armed Conflict Policy Brief No. 1/2009, p. 5, www.elac.ox.ac.uk/downloads/
r2p_policybrief_180209.pdf.

M. Contarino et al. / Global Responsibility to Protect 4 (2012) 275–308 277
One of the actors likely to influence the process of R2P norm consolida-
tion will be the International Criminal Court (ICC). Like R2P, the ICC is a
recent initiative of the international community.6 Like R2P, the ICC is
focused on atrocity crimes and embraces the principle of complementarity,
which assigns primary responsibility to individual states, but calls for
international action when states fail. Like R2P, the ICC is still in a forma
tive stage, during which its legitimacy, power and authority are being
established.
While the Court has already had some significant successes – and fully
139 countries have signed the Rome Treaty, and 1217 countries have ratified
it – the ICC continues to meet with resistance and even hostility.8 Several
important countries have yet to join, including India, USA, China and
Russia – the last three being permanent members of the UN Security
Council.9 As a consequence, the future impact of the Court, like the future
efficacy of the R2P commitment made by the UN General Assembly
(UNGA) in 2005, remains uncertain.
R2P obliges governments to prevent and stop genocide, war crimes,
crimes against humanity and ethnic cleansing. The ICC’s mandate is to
punish perpetrators of genocide, war crimes, crimes against humanity and
the crime of aggression. Because of this substantially common focus, R2P
and the ICC face similar obstacles and their respective futures will be
linked. To the extent that R2P is consolidated in the years ahead as a robust
6 ‘Rome Statute of the International Criminal Court’, A/CONF.183/9, Article 5(1), p. 8;

International Commission on Intervention and State Sovereignty (ICISS), The Responsibility
to Protect (Ottawa: IDRC, 2001). See also A/RES/60/1; S/RES/1674.
7 As of 1 July 2012, Guatemala became the 121st State Party.
8 ‘President Bush Criticizes the International Criminal Court’, 1 October 2004, www
.iccnow.org/documents/HRF_NGORespondICCRefPresDebate01Oct2004.pdf; Megan
Fairlie, ‘The United States and the International Criminal Court Post-Bush: A Beautiful
Courtship but an Unlikely Marriage’, Berkley Journal of International Law (forthcoming),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id = 1714825; Mingxuan Gao and Junping
Wang, ‘Issues of Concern to China Regarding the International Criminal Court’, paper pre-
sented at the Symposium on the International Criminal Court, Beijing, 3-4 February 2007,
www.icclr.law.ubc.ca/Site%20Map/ICC/IssueofConcern.pdf; Liling Yue, ‘Some Thoughts on
the Obstacles to China’s Accession to the Rome Statute – National Sovereignty and Human
Rights’, paper presented at the Symposium on the International Criminal Court, Beijing,
3-4 February 2007, www.icclr.law.ubc.ca/Site%20Map/ICC/ObstaclestoChinasAccessionto
theRomeStatute.pdf.
9 For a discussion of some of the political obstacles to International Criminal Court (ICC)
membership for USA, Russia and China, see Michael Contarino and Selena Lucent, ‘Stopping
the Killing: The International Criminal Court and the Responsibility to Protect’, Global
Responsibility to Protect, 1/4: 560-83 (2009).

international norm, this may help strengthen the mandate, and therefore
the legitimacy and the power, of the ICC. Similarly, a strong and authorita-
tive ICC could become a powerful tool, not just for the enforcement of the
R2P norm, but also for the continued re-enforcement of R2P as a robust,
taken-for-granted part of the international normative architecture.
International Norm Consolidation
In their seminal work on the norm lifecycle, Finnemore and Sikkink10

suggest that international norms go through a three-stage process. Each
stage, they argue, is characterised by different actors and mechanisms.
In the first stage, (‘norm emergence’) norm entrepreneurs introduce a new
idea into significant international policy discussions, where they attempt to
persuade others to adopt and formally embrace the idea. In the case of R2P,
this role was first played by the UN Secretary General, the Canadian
Government, and the International Commission on Intervention and
State Sovereignty (ICISS), as well as by other actors, such as the African
Union (AU).11
A notable entrepreneur within the UN system was former UN Secretary
General Kofi Annan. In response to the failure of the international commu-
nity to stop the Rwandan genocide, as well as the delays and disunity in the
face of crises in the former Yugoslavia, Annan pushed for ‘developing [an]
international norm in favour of intervention to protect civilians from
wholesale slaughter.’12 The Canadian Government took up Annan’s chal-
lenge with the ICISS, led by Gareth Evans and Mohamed Sahnoun. After a
year of study and discussion, ICISS published The Responsibility to Protect.
10 Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political
Change’, International Organization 52: 887-917 (1998).
11 See Kwesi Aning and Samuel Atuobi, ‘Application of and Responses to the Responsibility
to Protect Norm at the Regional and Sub-Regional Levels in Africa: Lessons for Imple
mentation’, paper presented at The Role of Regional and Sub-Regional Arrangements in
Strengthening the Responsibility to Protect, New York, 11 May 2011, www.stanleyfoundation
.org/publications/report/RoleRegSbregArgmntsR2P.pdf.
12 Vincent A. Auger, ‘The Responsibility to Protect: Six Years After’, Air & Space Power
Journal 2/2 (2011), p. 86 citing Kofi Annan, ‘Two Concepts of Sovereignty’, The Economist,
16 September 1999, www.economist.com/node/324795. Francis Deng’s work on developing
the responsibility concept was also important. See, for example, Francis M. Deng, Sakikiel
Kamaro, Terrence Lyons, Donald Rothchild and William Zartmann, Sovereignty as Respon
sibility: Conflict Management in Africa (Washington, D.C.: Brookings Institution Press, 1996).

The ICISS report13 established the ethical and legal framework for R2P, the
principle, which was then taken up by activists and academics both inside
and outside the UN. A more restricted conception of R2P was then formally
adopted by the UNGA in the 2005 World Summit Outcome Document.14
The second stage of the norm life-cycle, what Finnemore and Sikkink call
‘norm cascade,’ can occur only once the first stage has reached a ‘tipping
point,’ that is, after a critical mass of states have endorsed the emerging
norm. Typically, though not always, institutionalisation of the norm pre-
cedes cascade. A significant degree of institutionalisation of R2P clearly
already has occurred. Most importantly, after the UNGA World Summit
Outcome Document, R2P was specifically embraced by the UN Security
Council on several occasions.15 R2P also has been repeatedly referenced by
the Secretary General, former Secretary General Kofi Annan, and other UN
organs. References to R2P have been made in several crisis situations, and
in Kenya and Libya became the bases for significant interventions. In Kenya,
the intervention was diplomatic, as Annan brokered a political settlement
to end post-election violence. In Libya, intervention consisted of a UNSC-
authorized NATO military operation that ultimately resulted in regime
change.
According to Finnemore and Sikkink, the norm cascade stage sees other
states and international institutions come to embrace the new norm, as
part of a ‘socialisation’ process, in which failure to embrace the norm would
leave reticent states as outliers in the international community.16 At the
end of the cascade process, they argue, lies the third and final stage, ‘inter-
nalisation,’ in which the norm becomes an accepted, taken-for-granted rule
13 ICISS, The Responsibility to Protect.

14 A/RES/60/1. The ICCIS report had envisioned a comprehensive R2P that included
‘situations of state collapse and the resultant exposure of the population to mass starvation
and/or civil war; and overwhelming natural or environmental catastrophes, where the state
concerned is either unwilling or unable to cope, or call for assistance, and significant loss of
life is occurring or threatened.’ The Outcome Document, however, significantly narrowed
the meaning of R2P, to the crimes of genocide, war crimes, ethnic cleansing, and crimes
against humanity. The Outcome Document also put enforcement authority exclusively in
the UNSC, whereas the ICISS report had indicated other mechanisms to enforce R2P when
the UNSC failed to act, such as regional organizations under Article 52 or UNGA’s United for
Peace procedure.
15 S/RES/1674; S/RES/1706; S/RES/1970; S/RES1973; S/RES/2014, 21 October 2011.
16 See Thomas Risse, Stephen C. Ropp and Kathryn Sikkink (eds.), The Power of Human
Rights: International Norms and Domestic Change (Cambridge University Press, 1999).

of behaviour. States that fail to respect the internalised norm at this point
risk being perceived as rogues.
Norm consolidation may fail at any stage of this three-stage process. For
example, despite the momentum that had built up around the emerging
norm to ban commercial whaling, which culminated in a moratorium
issued in 1986 by the International Whaling Commission, changing circum-
stances led to the resumption of whaling and the failure of the emerging
norm to become institutionalised.17
Noha Shawki has argued recently that R2P is still at the emergence
stage.18 She notes that norm entrepreneurs are still key players, and that
R2P continues to meet with resistance from key actors. She observes also
that Non-Governmental Organizations (NGOs) such as the World Fede
ralists and Global Centre for R2P (GCR2P) continue to work at defining the
concept, which continues to be interpreted differently by various govern-
ments. In short, the tipping point has not yet been reached.
Shawki is probably correct that R2P has not yet reached the tipping point.
However, we would note that it may be difficult to recognize a tipping point
except retrospectively. In the future, should R2P succeed, we may look back
and see that the tipping point for R2P occurred with the 2005 UNGA resolu-
tion. That resolution, after all, was followed by repeated invocation in
recent years of R2P by key players, including the UNSC and the UNGA.
Alternatively, we might look back on the 2011 Libyan case (which we discuss
below) as the tipping point, given that it was the first major multilateral
military intervention explicitly based upon the principle, and that it was
successful in stopping impending atrocity crimes.
It is also possible that neither of these moments was a tipping point for
R2P. Already Russian and Chinese resistance in the UNSC to intervening in
Syria has slowed the momentum established by the Libyan operation. What
does appear fairly clear is that even if a tipping point has been reached,
cascade appears to be very slow. Despite its repeated reconfirmation by
authoritative international institutions and prestigious figures,19 including
17 For a discussion on the factors that led to this norm failure, see Jennifer L. Bailey,
‘Arrested Development: The Fight to End Commercial Whaling as a Case of Failed Norm
Change’, European Journal of International Relations, 14/2: 289-318 (2008).
18 Noha Shawki, ‘Responsibility to Protect: The Evolution of an International Norm’,
Global Responsibility to Protect, 3/2: 172-96 (2011).
19 See the comments of former ICC judge and UN Office of the High-Commissioner of
Human Rights, High Commissioner Navi Pillay made on 8 February 2012 in which
she invokes R2P as being violated in Syria. ‘The virtual carte blanche now granted to the
Syrian Government betrays the spirit and the word of this unanimous decision [the WSOD].

the former and present UN Secretaries General,20 some governments con-

tinue to resist R2P or to evade its implications by seeking to re-define R2P’s
third pillar as a mere ‘right’ of the international community to intervene, or
a moral guidepost, rather than as a binding responsibility.
Studies on the factors that facilitate norm compliance and effectiveness
are instructive for the issue of norm acceptance during the consolidation
process. Legro,21 for example, emphasizes that the intrinsic qualities of a
norm are likely to mould patterns of norm compliance and the capacity of
a norm to effectively shape state behaviour. He maintains that the robust-
ness of a norm is likely to be determined by the norm’s degree of what he
calls ‘specificity,’ ‘durability,’ and ‘concordance.’
‘Specificity,’ for Legro, refers to the degree to which the norm’s prescrip-
tions for appropriate behaviour and penalties for noncompliance are
unambiguous and clearly understood by all relevant actors. Applying
Legro’s typology to emergent norms, Shawki22 argues that norms which are
convoluted or ill-defined will be slow to progress from the emergence to the
cascade stage because the lack of specificity results in confusion and/or
suspicion on the part of would-be norm adopters. It is important, then, for
norm entrepreneurs to clarify concepts, preferably early during the norm’s
emergence stage, in order to eliminate, or at least attenuate, the uncer-
tainty and confusion that may prevent endorsement.
Legro says that a norm’s ‘durability’ also will impact its attractiveness to
key actors. Durability is measured by examining the length of time
the norm has been in effect and the degree to which the norm has with-
stood tests of applicability and implementation in real-world situations.
It is depriving the population of the protection they so urgently need.’ ‘UN Human Rights
Chief Urges Action to Halt Escalating Violence in Syria’, United Nations Office of the High
Commissioner of Human Rights press release, 8 February 2012, www.ohchr.org/en/News
Events/Pages/DisplayNews.aspx?NewsID = 11804&LangID = E.
In August and December 2011 High Commissioner Pillay also called on the UNSC to refer
the situation in Syria to the ICC. Ibid.
20 Kofi Annan, Follow-up to the Outcome of the Millennium Summit, A/59/565, 2 December
2004; Kofi Annan, In Larger Freedom: Towards Development, Security and Human Rights For
All, A/59/2005, 21 March 2005; Ban Ki-Moon, Implementing the Responsibility to Protect,
A/63/677, 12 January 2009; Ban Ki-Moon, Early Warning Assessment and the Responsibility to
Protect, A/64/864, 14 July 2010; Ban Ki-Moon, The Role of Regional and Sub-regional
Arrangements in Implementing the Responsibility to Protect, A/65/877, 27 June 2011.
21 Jeffrey Legro, ‘Which Norms Matter? Revisiting the Failure of Internationalism’,
International Organization, 51/1: 31-63 (1997). For a discussion on indicators of norm
legitimacy, see also Thomas M. Franck, ‘The Emerging Right to Democratic Governance’,
The American Journal of International Law, 86/1: 46-91 (1992).
22 Shawki, ‘Responsibility to Protect’.

A durable norm becomes a part of the international architecture, and its

violation triggers actions to punish the norm-violating actor. Such punish-
ment further strengthens the norm. While norm violation may still occur,
this does not imply norm weakness, so long as norm violations are
punished.
Finally, Legro’s concept of ‘concordance’ refers to how widely and uncon-
ditionally the norm is accepted by relevant actors. If, during international
discussions, actors consistently endorse the norm’s policy prescriptions
and penalties for non-compliance, without attaching numerous conditions
and reservations, then the norm is considered to have a high degree of
concordance.
Like Legro, the important work of Keck and Sikkink23 emphasizes the
substance of a norm itself, as the authors assess the likelihood of norm
acceptance by state actors. Norms which promote universal values, such as
the inappropriateness of physical harm to innocent individuals or equal
legal treatment of individuals, and which fit within pre-existing normative
frameworks are more likely to garner support. They also suggest that a
norm which fits within or complements existing normative frameworks is
more likely to be well-received by the international community.
There is, however, another factor influencing norm acceptance that
we believe must be considered. In addition to the intrinsic qualities of a
norm-in-formation, its substance, and the degree to which the norm
complements pre-existing normative frameworks, we also need to examine
carefully the robustness of any pre-existing norms being implicitly or
explicitly challenged by the new norm. Not all old norms, after all, are
equally robust. Some may well be easier to challenge, modify or displace
than others.
Consider, for example, old international norms that once legitimized
slavery and colonialism. Such norms were challengeable by new norms,
precisely because they were already under stress, as we will discuss below.
But other old norms may be more robust – such as the traditional
Westphalian concept of national sovereignty currently challenged by R2P.
To be sure, this is not the first major challenge to absolute state sovereignty;
R2P is based in decades-old humanitarian and human rights norms.24
23 Margaret Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in
International Politics (Cornell University Press, 1998).
24 International humanitarian law goes back at least to the 19th Century when Henri
Dunant began his action in defense of victims of war, and international human rights laws

Nevertheless, R2P represents a new and fundamental challenge to durable

and well-established norms pertaining to state sovereignty and non-
intervention. Accordingly, so long as the nation-state remains the funda-
mental unit of international politics, the R2P challenge must appeal to the
various nation states that make up that system.
That the R2P cascade, if it has begun, is slow is not surprising, given that
this norm-in-formation is actually seeking to significantly modify a power-
ful and well-established pre-existing norm – the Westphalian State, enjoy-
ing a monopoly of the legitimate use of force within its own borders.25 This
pre-existing norm has defined the nation state in Europe, and increasingly
around the globe, for centuries, and we should not expect sovereign states
to willingly give it up. Indeed, much international relations theory suggests
that states will surrender power only under duress, or when the ‘pooling’ of
sovereignty, as in the European Union, is necessary to the achievement of
fundamental national goals.26
Understanding why some old norms, such as slavery or colonialism, may
be decadent, and therefore vulnerable to challenge, can be understood
either in realist or constructivist terms. Realists might argue that the victory
of liberal and democratic norms over the older norms of slavery and
colonialism was a result of relative power shifts among states – those
defending these old norms were declining in power and influence, while
those challenging them were in the ascendant.
A constructivist approach, by contrast, conceptualizes an international
society with elements of a shared culture, and focuses on the effects that
culture and identity have on state behaviour. From a constructivist per-
spective, states eschewed slavery not merely in response to changing power
structures, but also because of changes in perceptions of what was appro-
priate behaviour by certain types of states. Although some states were
have grown significantly since the Second World War. See Christian Tomuschat, ‘Human
Rights and International Humanitarian Law’, European Journal of International Law 21/1:
15-23 (2010). See also Anne Orford, International Authority and the Responsibility to Protect
(Cambridge University Press, 2011).
25 R2P implicitly challenges traditional Westphalian sovereignty with the notion of ‘sov-
ereignty as responsibility’ or even ‘earned sovereignty’. While the idea that governments
have responsibilities is not new, R2P is the first time that the international community has
agreed so explicitly that sovereignty entails responsibility to prevent and stop atrocity
crimes. See, for example, Deng et al, Sovereignty as Responsibility. See also Amitai Etzioni,
Security First: For a Muscular, Moral Foreign Policy (Yale University Press, 2007).
26 For example, see Robert Keohane and Stanley Hoffmann (eds.), The New European
Community: Decision-Making and Institutional Change (Boulder: Westview Press, 1991).

undoubtedly motivated to abolish slavery because of material or political

gain, norm entrepreneurs effectively framed rejection of the emerging anti-
slavery norm as an indication that a country was uncivilized, immoral and
undemocratic, which also played a role in actors’ calculations concerning
whether to accept or reject the emerging norm. For countries, such as the
US, that presented themselves as civilized and democratic, this served to
directly challenge the core foundation of their identity and legitimacy.27
Constructivists have problematized the conceptualization of sovereignty
in realist and neo-realist theories, arguing that international norms, such as
sovereignty, are not static and should be analysed as social constructs that
are produced and reproduced through the practices of states.28 They
elucidate how the evolving interpretations of sovereignty have been shaped
by power shifts in the international system and changing views on human
rights and human security. Indeed, the significant growth of the global
human rights regime in the last half century has placed both new restric-
tions and new responsibilities on state actors with regard to their treatment
of citizens. This has led some analysts, such as Krasner, to argue that
Westphalian sovereignty is under attack, not only by the growth in interna-
tional human rights law but also by the forces of globalization.29 In the face
of wars, genocides, and shared environmental challenges, significant limits
already began to emerge in the 20th century, and globalization and its atten-
dant interdependence also have undermined the traditional Westphalian
conception.
Donnelly, however, argues that the global human rights regime has, in
fact, not eroded state sovereignty, noting that implementation of interna-
tional human rights laws still ultimately lies with states, and there are no
robust international enforcement mechanisms that subordinate states to a
higher international authority.30 For example, although the Universal
27 For a discussion on the evolution of the anti-slavery norm, see Ethan A. Nadelmann,
‘Global Prohibition Regimes: The Evolution of Norms in International Society’, International
Organization, 44/4: 479-526 (1990).
28 For discussions on changing interpretations of sovereignty, see John G. Ruggie,
‘Territoriality and Beyond: Problematizing Modernity in International Relations’,
International Organization, 47/1: 139-74 (1993); J. Samuel Barkin and Bruce Cronin, ‘The State
and the Nation: Changing Norms and the Rules of Sovereignty in International Relations’,
International Organization, 48/1: 107-30 (1994); Cynthia Weber, Simulating Sovereignty:
Intervention, the State and Symbolic Exchange (Cambridge University Press, 1995); Jack
Donnelly, ‘State Sovereignty and Human Rights’, Working Paper No. 21, 23 June 2004, www
.du.edu/korbel/hrhw/workingpapers/2004/21-donnelly-2004.pdf.
29 Stephen Krasner, Sovereignty: Organized Hypocrisy (Princeton University Press, 1999).
30 Donnelly, ‘State Sovereignty and Human Rights’.

Declaration of Human Rights obliges states to respect the natural rights of

their citizens, international supervision of states is very limited and there is
no global enforcement mechanism. As such, according to Donnelly, inter-
national human rights laws do not significantly reduce state sovereignty.
This may be one reason why there has not been more overt resistance to the
growth of the international human rights regime.
Donnelly notes that if human rights laws or rules of humanitarian
intervention modified prevailing norms of sovereignty and non-interven-
tion by actually requiring ‘international enforcement of even a substantial
segment of internationally recognized human rights, [this] would indeed
represent a fundamental transformation of our sovereignty practices.’31 To
the extent that the responsibility to protect requires intervention and trans-
fers enforcement authority from a sovereign state to international society,
Donnelly believes R2P does constitute a small but real loss of sovereignty.
Consequently, resistance to R2P is to be expected, and Donnelly predicts
that ‘genocide, for the next few decades at least, is almost certain to remain
the exception that proves the rule of national implementation.’32
This points to a potential problem for R2P norm consolidation. If
Donnelly is right, extending the intervention principle beyond genocide to
crimes against humanity, war crimes and now even crimes of aggression
should be expected to provoke resistance from some would be norm adopt-
ers. Arguably, it might be easier to normalize international action under
R2P for genocide first, and only subsequently to seek to apply it more
broadly. Similarly, normalization of R2P might succeed more rapidly were it
to emphasize at first the less controversial first and second pillars, as well as
aspects of the third pillar that do not entail armed intervention.
Despite R2P’s challenge to traditional conceptions of sovereignty, some
states strongly support R2P and are seeking to build robust supranational
arrangements that commit states to prevent human rights violations.
Notably, a communiqué of the Economic Community of West African
States (ECOWAS) Mediation and Security Council (MSC) explicitly sup-
ported conflict prevention at the supranational level, stating that, ‘as steps
are taken under the new ECOWAS Strategic Vision to transform the region
from an ‘ECOWAS of States’ into an ‘ECOWAS of the Peoples,’ the tensions
between sovereignty and supranationality, and between regime security
31 Ibid, p. 16.
32 Ibid.

and human security, shall be progressively resolved in favour of supra

nationality and human security respectively.’33
Indeed, ECOWAS and the African Union (AU) are in the process of devel-
oping the security architectures needed for their preferred regionally-based
conception of R2P. For example, a pan-African Stand-by Force (ASF) that
will respond to crises is being created under the aegis of the AU.34 Yet there
remain significant lacunae with regard to the specific indicators which sig-
nal when atrocity crimes are imminent and when action is necessary. This
points to a problem of non-specificity, an obstacle to norm consolidation.
Clarification of R2P likely will come through practice, and Africa is the
region where such practice appears most likely to take place, as all cases
currently on the ICC’s docket involve Africa. The ICC trials and the actions
by African regional organizations could reduce some of the ambiguity
(non-specificity) surrounding what R2P is and demonstrate how it can best
be executed. Depending on the success of such endeavours, this could
either allay or stoke fears among those hitherto hesitant to endorse the
norm.
Challenges To R2p Norm Consolidation
Some aspects of R2P are not controversial. There is broad consensus on

pillar one and pillar two, and on the building up of prevention, assessment,
and mediation capacities. However, the coercive aspects of R2P’s third
pillar remain controversial. Some states strongly resist the idea of armed
intervention to stop atrocity crimes, or disagree as to when such interven-
tions are permissible, and whether or not they are voluntary (i.e. a ‘right’ to
intervene, but not a responsibility). As a consequence, global consensus on
what R2P means and requires of states remains elusive. Until greater ‘speci-
ficity’ and ‘concordance’ on these issues is achieved, norm consolidation
also will remain elusive.
R2P has suffered from significant lack of specificity and concordance
from the beginning. After the adoption of the 2005 World Summit Outcome
33 ‘The ECOWAS Conflict Prevention Framework’, MSC/REG.1/01/08, 16 January 2008,

section 2(4).
34 The African Union maintains a list of documents concerning the establishment of
the African Standby Force: www.africa-union.org/root/au/auc/departments/psc/asf/
documents.htm.

Document by the UNGA on 16 September 2005,35 Russia, China, and the

United States attempted to dilute or remove R2P language from a resolu-
tion committing the Council to the protection of civilians in armed
conflict.36 A draft of the resolution dated 21 November 2005 included R2P
language,37 but with Russia, China and the US claiming that further UNGA
action was needed, the resolution was tabled for months before finally
being adopted on 28 April 2006 as UNSC Res. 1674. This was the first Security
Council resolution to explicitly reaffirm the principles of R2P as outlined
in the Outcome Document.38 Resistance to the responsibility to protect
language featured in the Outcome Document, in paragraphs 138 and 139 of
that document, as well as the subsequent delay in passing UNSC Res. 1674,
signified, at the least, either the lack of a common understanding of what
R2P meant (lack of ‘specificity’) or indeed ‘buyer’s remorse’ (lack of ‘concor-
dance’) on the part of the Russia, China, and the United States.
Resistance from the United States had followed the Bush administra-
tion’s attempt during the World Summit to amend paragraphs 138 and 139
with language that would have suggested that R2P was a mere moral
responsibility rather than an obligation. ‘In other words,’ wrote Ernie
Regehr, at the time ‘international action under the formulation proposed
by the U.S. would continue to be purely optional and up to the discretion of
the Security Council.’39
While USA resistance to R2P has attenuated notably in recent years,40
that of China and Russia has continued. Resistance to R2P by China
35 A/RES/60/1.
36 Oxfam, ‘Russia, China, Algeria, United States Backtracking on Agreement Against
Genocide Warns Oxfam’, Oxfam press release, 13 December 2005, www.oxfam.org/en/news/
pressreleases2005/pr051209_r2p.
37 International Coalition for the Responsibility to Protect, ‘Draft Security Coun
cil Resolution: Protection of Civilians in Armed Conflict’, 21 November 2005, www
.responsibilitytoprotect.org/files/Draft%20POC%20resolution.pdf.
38 S/RES/1674.
39 Ernie Regehr, ‘U.S. Tries to Water Down UN “Right to Protection” Reform’, The Record,
8 September 2005, www.ploughshares.ca/content/us-tries-water-down-un-right-protection
-reform-global-summit-wants-add-muscle-protect-worlds.
40 ‘The responsibility to protect complements principles of international humani
tarian and human rights law to which we have all committed. It reflects our collective
recognition of past failures to save the innocent from the worst forms of atrocity and
abuse. That is important progress, and the United States supports it.’ Ambassador of the
United States Rosemary DiCarlo, A/63/PV.97, 23 July 2009, p. 17; The White House,
‘Presidential Study Directive on Mass Atrocities’, The White House press release, 4 August
2011, http://responsibilitytoprotect.org/White%20House%20PSD.pdf. See also a posting
by Deputy Director for Public Affairs in the Bureau of International Organization Affairs,

and Russia, as well as by a few other powerful governments, typically

involves assertions of the primacy of state sovereignty, as well as efforts to
redefine R2P as a moral guide, rather than as an obligation. The former
(assertions of state sovereignty) challenge Legro’s ‘concordance,’ while
the latter (redefinition) reveals problems both of non-concordance and
non-specificity.
China’s attempts to circumscribe the meaning of R2P has been notable.
For example, at the UNGA ‘Interactive Thematic Dialogue of the United
Nations General Assembly on the Responsibility to Protect’ held on the 23,
24 and 28 July 2009, the Chinese Deputy Permanent Representative, Liu
Zhenmin sought to minimize the applicability of R2P, when he said:
[T]he Government of a given State has the primary responsibility to protect
the citizens of that country. The international community can provide assis-
tance, but the protection of the citizens ultimately depends on the Government
of that State. This is in keeping with the principle of State sovereignty.
Therefore, the implementation of the responsibility to protect should not con-
travene the principle of state sovereignty and the principle of non-interfer-
ence in the internal affairs of States. Although the world has undergone
conflicts and deep changes, the basic status of the purposes and principles of
the Charter remains unchanged. There must be no wavering with regard to the
principles of respect for State sovereignty and non-interference in the internal
affairs of States.41
The Chinese representative then explicitly stated that R2P should be con-
sidered a ‘concept’ not a norm, ‘Thus far, the responsibility to protect
remains a concept and does not constitute a norm of international law.
Therefore, States must avoid using the responsibility to protect as a diplo-
matic tool to exert pressure on others.’42
The Chinese position was reiterated by Deputy Permanent Representa
tive Wang Min at the UNSC ‘Open Debate on the Protection of Civilians
in Armed Conflict’ in 2010:
Mark Schlachter on the U.S. State Department’s Official Blog in which he writes, ‘Assistant
Secretary Brimmer’s remarks at the meeting underscored the U.S. commitment to the ideals
and concepts framed by the Responsibility to Protect – a commitment made clear in the
President’s National Security Strategy: “The United States is committed to working with our
allies, and to strengthening our own internal capabilities, in order to ensure that the United
States and the international community are proactively engaged in a strategic effort to pre-
vent mass atrocities and genocide.”’ Mark Schlachter, ‘Fulfilling the Responsibility to Protect’,
24 September 2010, http://blogs.state.gov/index.php/site/entry/r2p.
41 Ambassador of China Liu Zhenmin, A/63/PV.98, 24 July 2009, p. 23.
42 Ibid, p. 24.

The protection of civilians in armed conflict must be strengthened in line with
the Fourth Geneva Convention, international humanitarian law, and the prin-
ciple of respect for State sovereignty, political independence and territorial
integrity as enshrined in the United Nations Charter.43
And again on 10 May 2011, during the UNSC-sanctioned Libyan operation,44
at another UNSC ‘Open Debate on the Protection of Civilians in Armed
Conflict’ Chinese UN Permanent Representative Li Baodong stated:
[T]he responsibility to protect civilians lies first and foremost with the
Government of the country concerned. The international community and
external organizations can provide constructive assistance, but they must
observe the principles of objectivity and neutrality and fully respect the inde-
pendence, sovereignty, unity and territorial integrity of the country concerned.
There must be no attempt at regime change or involvement in civil war by any
party under the guise of protecting civilians.45
Li Baodong goes on to say that, ‘only by actively promoting a political
solution by peaceful means through dialogue and negotiation can civilian
casualties be minimized. Military means are not an effective answer to
these issues.’46
In June 2011, China even hosted Sudanese President al-Bashir on a red-
carpet state visit, despite an open ICC arrest warrant.47 As China is not an
ICC State Party, it considers itself not legally obligated to act on the arrest
warrant. But by receiving a Head of State currently being sought by the ICC,
the Chinese government demonstrated, at the very least, a willingness to
appear to disrespect the Court and to ignore the interventionist juridical
interpretation of R2P that the ICC warrant implicitly represented.
Russia has been more measured than China in its statements regarding
R2P, but also less consistent. Whereas the Chinese regularly resist R2P
on principle, seeking to downgrade it to little more than an idea, Russia’s
position toward R2P has shifted according to what might look like mere
43 Ambassador of China Wang Min, S/PV. 6427, 22 November 2010, p. 24.

44 China and Russia had abstained, rather than veto the resolution authorizing the no-fly
zone, but then criticized implementation. S/PV.6498.
45 Ambassador of China Li Baodong, S/PV.6531, 10 May 2011, p. 20.
46 Ibid, p. 21.
47 Al-Jazeera, ‘Bashir Visits China Ahead of S Sudan Split’, 27 June 2011, www.aljazeera
.com/news/africa/2011/06/20116275153486277.html. For more information on the US posi-
tion on the ICC as well as the Court’s ongoing cases in Africa, see Alexis Arieff, Rhoda
Margesson, Marjorie Ann Browne and Matthew C. Weed, ‘International Criminal Court
Cases in Africa: Status and Policy Issues’, Congressional Research Service RL34665, 22 July
2011, www.fas.org/sgp/crs/row/RL34665.pdf

expediency. For example, Russia has resisted intervention in Syria and was
uneasy about intervention in Libya48 – but Russia actually used R2P to jus-
tify its 2008 military actions against Georgia, where by any standard the
human rights situation was far less alarming than in either Libya or Syria. In
an interview with the BBC on 9 August 2008, Foreign Minister Sergey Lavrov
stated:
My President yesterday was very clear. He said that under the Constitution he
is obliged to protect the life and dignity of Russian citizens, especially when
they find themselves in the armed conflict. And today he reiterated that the
peace enforcement operation enforcing peace on one of the parties which
violated its own obligations would continue until we achieve the results.
According to our Constitution there is also responsibility to protect – the term
which is very widely used in the UN when people see some trouble in Africa or
in any remote part of other regions. But this is not Africa to us, this is next door.
This is the area, where Russian citizens live. So the Constitution of the Russian
Federation, the laws of the Russian Federation make it absolutely unavoidable
to us to exercise responsibility to protect.49
Russia’s current position on the use of force in atrocity prevention is that
such force should only be used in ‘strict compliance with existing UN
mechanisms,’ that is only when the UNSC (where Russia has a veto) autho-
rizes action. Russian Permanent Representative to the UN, Vitaly Churkin
stated on 10 May 2011:
Certainly, the Governments of States involved in conflicts bear the primary
responsibility for protecting the population living on their territory. At the
same time, all parties to armed conflict are responsible for the security of civil-
ians. The activities of the international community should assist national
efforts in that area. Moreover, undertaking such international measures, in
particular those involving the use of force, is possible only with the authoriza-
tion of the Security Council, in strict compliance with the United Nations
Charter and within the framework established by the relevant Security Council
resolutions.50
Russia’s selective and arguably cynical use of the R2P principle might at
first appear to undermine rather than contribute to normative consolida-
tion. However, it is possible that even such strategic use of an emerging
norm may actually promote its internalisation. Risse, Ropp and Sikkink
48 Ambassador of Russia Vitaly Churkin, S/PV.6498, p. 8.

49 Ministry of Foreign Affairs of the Russian Federation, ‘Interview by Minister of Foreign
Affaires of the Russian Federation Sergey Lavrov to BBC, Moscow, August 9, 2008’, 9 August
2008, www.mid.ru/brp_4.nsf/0/C4367C2B715EDA6DC32574A2005548AC.

noted in 1999, for example, that in the early stages of socialisation, states
may use a norm inconsistently and opportunistically – but that once they
do so they may find it difficult to deny the norm’s validity in other
situations.51 Instrumental use of a norm leads to entanglement in ‘a moral
discourse which they cannot escape in the long run.’52 Accordingly, over
time even opportunistic invocation of R2P may strengthen the norm, as it
enables norm supporters to use states’ own rhetoric against them. Of
course, as we discuss below, it is also possible that inconsistent and contra-
dictory invocation of R2P may undermine norm specificity, thereby eroding
it from within.
China’s rejection of any interpretation of R2P which sanctions interfer-
ence with national sovereignty has been echoed by some other important
governments. On 24 July 2009, at the ‘Interactive Thematic Dialogue of the
United Nations General Assembly on the Responsibility to Protect,’
Pakistan’s Permanent Representative to the UN, Abdullah Hussain Haroon
stated that, ‘R2P should not become a basis either for contravening the
principles of non-interference and non-intervention or for questioning the
national sovereignty and territorial integrity of any State.’53 Haroon was an
outspoken critics of R2P at the 2009 UNGA debate,54 where he harshly criti-
cized R2P’s third pillar, ‘[it] was introduced 10 or 15 years ago under another
name — the right of intervention. It is that and remains that.’55
The Arab Spring has provoked more Chinese and Russian resistance to
R2P, most notably their joint veto on 4 October 2011, of action against Syria.
Russia and China were concerned about the possibility of another Libya-
type military intervention, and about the potential for sanctions. At the
UNSC meeting on 4 October 2011, Chinese Permanent Representative Li
Baodong, called for a peaceful resolution of Syria’s unrest and the imple-
mentation of promised political reforms by the Syrian regime:
The international community should provide constructive assistance to facili-
tate the achievement of the objectives I have mentioned. In the meantime,
51 Risse et al, The Power of Human Rights.

52 Ibid, p. 16.
53 Ambassador of the Islamic Republic of Pakistan Abdullah Hussain Haroon, A/63/
PV.98, p. 3.
54 Global Centre for the Responsibility to Protect, ‘Implementing the Responsibility to
Protect, The 2009 General Assembly Debate: An Assessment’, August 2009, p. 10, http://
globalr2p.org/media/pdf/GCR2P_General_Assembly_Debate_Assessment.pdf.
55 Ambassador of the Islamic Republic of Pakistan Abdullah Hussain Haroon, A/63/
PV.98, p. 4.

it should fully respect Syria’s sovereignty, independence and territorial

integrity. Whether the Security Council takes further action on the question of
Syria should depend upon whether it complies with the Charter of the United
Nations and the principle of non-interference in the internal affairs of States.56
Li Baodong insisted that there was only one possible course of action,
‘respect for the sovereignty of Syria and resolving the crisis there through
political dialogue.’57
The Russian position was similar to that of the Chinese. Russian
Permanent Representative Vitaly Churkin called for respect for Syria’s ter-
ritorial integrity and sovereignty, and alluded to the situation in Libya, ‘Our
proposals for wording on the non-acceptability of foreign military interven-
tion were not taken into account, and, based on the well-known events in
North Africa, that can only put us on our guard.’58
Churkin continued: ‘Equally alarming is the weak wording in connection
with the opposition and the lack of an appeal to them to distance them-
selves from extremists.’59 This statement by Churkin ignored the actual
content of the resolution (S/2011/621), which explicitly cited both the gov-
ernment and the opposition, demanding ‘an immediate end to all violence’
and urging ‘all sides to reject violence and extremism.’60
Churkin also objected to the tone of the draft resolution, stating, ‘We
cannot agree with this unilateral, accusatory bent against Damascus.
We deem unacceptable the threat of an ultimatum and sanctions against
the Syrian authorities.’61 Later Churkin remarked that, ‘such an approach
could trigger a full-fledged conflict in Syria and destabilization in the region
as a whole.’62
56 Ambassador of China Li Baodong, S/PV.6627, 4 October 2011, p. 5; for the wording of

the UNSC Draft Resolution on Syria, see S/2011/612, 4 October 2011.
57 Ibid. To the credit of the Chinese, they sent an envoy to Syria, just as the US pulled its
envoy amid security concerns. In a news briefing held on 5 October 2011, prior to the envoy’s
26-30 October 2011 visit to Syria and Egypt, Foreign Ministry spokeswoman Jiang Yu stated,
‘We believe that Syria’s government should proactively fulfill its promises of reform, and
answer the people’s reasonable demands.’ Al-Jazeera, ‘Syrian Forces “Battle Anti-Government
Troops”’, 25 October 2011, www.aljazeera.com/news/middleeast/2011/10/20111025135113935956
.html.
58 Ambassador of Russia Vitaly Churkin S/PV.6627, p. 4.
59 Ibid.
60 S/2011/612, p. 2.
62 Ibid, p. 4.

Churkin’s view that a confrontational approach might be counterproduc-

tive was echoed by others, including the Indians.63 But Russia’s estimated
$4 billion revenue loss,64 from the Libyan arms embargo following UNSC
Res. 1970,65 and Russia’s continuing arms sales to the Syrian regime did not
escape allusion from US Permanent Representative Susan Rice, who
observed what she believed might be the true reason for Russia’s veto:
Others claim that strong Security Council action on Syria would merely be a
pretext for military intervention. Let there be no doubt: this is not about mili-
tary intervention; this is not about Libya. That is a cheap ruse by those who
would rather sell arms to the Syrian regime than stand with the Syrian
people.66
Other western Security Council members also expressed displeasure with
those resisting action against Syria. Ambassador Peter Wittig, Permanent
Representative of Germany said, ‘Today the Council failed to live up to its
responsibilities under the Charter of the United Nations: the maintenance
of international peace and security. But let me be very clear. My country
would have wished for a stronger resolution at a much earlier stage.’67 He
continued, ‘While we encourage political dialogue, we will continue, if
need be, to push for sanctions against those who brutally repress their
people and threaten international peace and stability.’68
The UK Permanent Representative, Sir Mark Lyall Grant also expressed
frustration with the Russian and Chinese opposition, as well as scepticism
about bilateral talks with Syrian President Bashar Al-Assad:
We removed the sanctions. Still, it was unacceptable to the minority. We called
on all sides to reject violence and extremism. Still it was unacceptable.
We removed any sense that sanctions would automatically follow in 30 days
if the regime failed to comply, and still it was unacceptable. By including
63 ‘We firmly believe that the actions of the international community should facilitate
engagement of the Syrian Government and the opposition in a Syrian-led inclusive political
process, and not complicate the situation by threats of sanctions, regime change, et
cetera.’ Ambassador of the Republic of India Hardeep Signh Puri, S/PV.6627, p. 6. See also
Robert A Pape, ‘Why Economic Sanctions Still Do Not Work’, International Security, 23/1:
66-77 (1999).
64 Thomas Grove, ‘Russia to Sell Arms to Syria, Sales Overall to Rise’, Reuters, 17 August
2011, www.reuters.com/article/2011/08/17/us-russia-arms-idUSTRE77G41X20110817.
65 S/RES/1970.
66 Ambassador of the United States of America Susan Rice, S/PV.6627, p. 8.
67 Ibid, Ambassador of Germany Peter Wittig, p. 10.
68 Ibid.

reference to Article 41 of the United Nations Charter we made it clear that any
further steps would be non-military in nature. Still it was unacceptable.69
He continued:
Some members of the Security Council have made bilateral attempts to engage
President Assad and to persuade the Syrian Government to change course and
implement reform. Each time, they have received vague promises of reform,
and each time the Syrian Government has failed to deliver. By blocking this
resolution, the onus is now on those countries to step up their efforts to per-
suade the Syrian Government to end the violence and pursue genuine
reform.70
Clearly, the Syrian case shows deep differences regarding the meaning and
applicability of the responsibility to protect – and the positions taken by
Russia and China, despite slight softening of their positions during the
Spring of 2012,71 do not bode well for R2P norm consolidation. The lack of
specificity plagues R2P at the very heart of the UNSC, and this lack is most
evident over the third pillar, and in particular over armed intervention. The
narrow definition of R2P embraced by two P-5 members stands in sharp
contrast to the more expansive definition embraced by France, Britain, and
now by the Obama administration as well.72 Without a softening in the
positions of Russia and China (or at least by one of them, which would
69 Ibid, Ambassador of the United Kingdom Sir Mark Lyall Grant, p. 7.

70 Ibid.
71 In late March 2012 former UN Secretary-General Kofi Annan led a joint UN-Arab
League peace envoy to Syria, and on 28 March 2012 Syria agreed to a peace plan. Rima
Marrouch, ‘Syria Agrees to U.N. Envoy Kofi Annan’s Peace Plan’, Los Angeles Times, 28 March
2012, http://articles.latimes.com/2012/mar/28/world/la-fg-syria-accord-20120328. However,
the peace plan began to deteriorate quickly. Jonathan Marcus, ‘Annan’s Syria Plan: Ailing But
Not Yet Dead’, BBC, 10 April 2012, www.bbc.co.uk/news/world-middle-east-17662477. On 15
April 2012, the UNSC voted, with Russian and Chinese support, to send 30 UN peace moni-
tors to Syria. Colum Lynch and Liz Sly, ‘UN Votes to Send Syria Monitors Amid Shaky Truce’,
Washington Post, 14 April 2012, www.washingtonpost.com/world/national-security/
un-votes-to-send-monitors-to-syria-amid-shaky-truce/2012/04/14/gIQAFu1SHT_story.html
. On 21 April 2012, the UNSC unanimously voted to send additional peace monitors bring the
total to 300. ‘U.N. Security Council Authorizes Team of up to 300 Cease-fire Observers in
Syria’, Washington Post, 21 April 2012, www.washingtonpost.com/world/national-security/
un-authorizes-team-of-up-to-300-cease-fire-monitors-in-syria/2012/04/21/gIQAPLdzXT
_story.html.
72 The Obama Administration’s new ‘Atrocity Prevention Board,’ while not explicitly
framed in terms of R2P, is potentially an important step toward broad efforts to prevent the
four atrocity crimes listed in the UNGA Outcome Document. See, for example, Madeleine
Albright and Willian Cohen, ‘More than Just Remembering’, Foreign Policy, 23 April 2012,
www.foreignpolicy.com/articles/2012/04/22/more_than_just_remembering.

leave the other awkwardly isolated on the Council), consolidation of R2P is

at risk, given the central role of the UNSC as the chief decision-making
institution.
Since the 2005 signing of the Outcome Document, states have expressed
their varied understandings and interpretations of R2P in the forums of the
United Nations.73 The United Kingdom, France, Germany and, more
recently, the US all have stressed their support for R2P. These states also
have shown themselves willing to act when faced with government crack-
downs as a result of the Arab Spring. They have drafted and sponsored reso-
lutions condemning government crackdowns as violations of human rights
law and the principles of R2P,74 and France, the United Kingdom, and the
United States backed up these resolutions with the imposition of a no-fly
zone over Libya75 established under UNSC Res. 1973.76 The United States
has also recently moved to assist Uganda in the apprehension of Joseph
Kony, leader of the Lord’s Resistance Army and outlaw of the International
Criminal Court.77
France has actually gone so far as to push for an expansion of the four
crimes covered under R2P as laid out in the Outcome Document. During
the UNGA ‘Interactive Thematic Dialogue of the United Nations General
Assembly on the Responsibility to Protect’ on 23 July 2009, Deputy
Permanent Representative of France, Jean-Pierre Lacroix stated:
France will also remain vigilant to ensure that natural disasters, when
combined with deliberate inaction on the part of a Government that refuses
to provide assistance to its population in distress or to ask the international
73 A/63/PV.97; A/63/PV.98; A/63/PV.99, 24 July 2009; A/63/PV.100, 28 July 2009; A/63/

PV.101, 28 July 2009; S/PV.6427; S/PV.6427 Resumption 1, 22 November 2010; S/PV.6531; S/
PV.6531 Resumption 1, 20 May 2011.
74 See statements by Bosnia and Herzegovina, Colombia, France, Gabon, Germany,
Lebanon, Nigeria, Portugal, South Africa, the United Kingdom of Great Britain and Northern
Ireland and the United States of America in S/PV.6491, 26 February 2011; statements by
France, Lebanon, the United Kingdom of Great Britain and Northern Ireland, and the United
States of America in S/PV.6498; text by France, Lebanon, the United Kingdom of Great
Britain and Northern Ireland and the United States of America in S/2011/612; statements by
France, Germany, Portugal, the United States of America and the United Kingdom of Great
Britain and Northern Ireland in S/PV.6634, 21 October 2011.
75 James Blitz, Daniel Dombey and Peggy Hollinger, ‘UK and France Spearhead
Campaign’, Financial Times, 18 March 2011, www.ft.com/cms/s/0/dfb706e2-518d-11e0-888e
-00144feab49a.html#axzz1wtfCjeSB.
76 S/RES/1973.
77 Traub, ‘No Apology Necessary’.

community for aid, do not lead to human tragedies in which the international
community can only look on helplessly.78
This expansive French view of R2P has been resisted, however, by other
R2P supporters, further complicating specificity. Japan, for example
(a supporter of R2P and of the actions taken in Libya under UNSC Res. 1973)
does not support the French call for expansion of R2P’s range. On 24 July
2009, at the UNGA ‘Interactive Thematic Dialogue of the United Nations
General Assembly on the Responsibility to Protect,’ former Permanent
Representative of Japan Yukio Takasu stated, ‘We should not enlarge
the scope of R2P to include overall threats to humanity such as poverty,
pandemics, climate change and natural disasters.’79
In contrast to France’s expansive view of the third pillar,80 Germany has
been cautious.81 While Former Permanent Representative of Germany to
the UN, Thomas Matussek, had acknowledged on 24 July 2009, that it was
the international community’s responsibility to ‘respond in accordance
with the Charter of the United Nations when a State is manifestly failing
to protect its population.’82 He also stressed that the third pillar is ‘of a
merely complementary nature and arises only when both the individual
State and the international community have failed in their obligations
to prevent genocide, war crimes, crimes against humanity or ethnic
cleansing.’83 Germany abstained on UNSC Res. 1973 to establish a no-fly
zone over Libya.
The African Union has always formally supported the concept of R2P and
the third pillar, but has been uncomfortable with former-colonial powers
intervening in African affairs, and has emphasized a regional conception of
how to enforce compliance with R2P. Article 4 of the AU Constitutive Act
affirms ‘the right of the Union to intervene in a Member State pursuant to a
decision of the Assembly in respect of grave circumstances, namely: war
crimes, genocide and crimes against humanity’ and ‘the right of Member
States to request intervention from the Union in order to restore peace and
78 Ambassador of France Jean-Pierre Lacroix, A/63/PV.97, p. 9.

79 Ambassador of Japan Yukio Takasu, A/63/PV.98, p. 21.
80 ‘[T]he responsibility to protect would not be complete without the third pillar, which
gives it its full meaning — that is, the international community’s reaction when one of the
four crimes is being or is about to be committed.’ Ambassador of France Jean-Pierre Lacroix,
A/63/PV.97, p. 10.
81 Ambassador of Germany Peter Wittig, S/PV.6498, p. 4-5.
82 Ambassador of Germany Thomas Matussek, A/63/PV.99, 24 p. 7.
83 Ibid.

security.’84 Africans have embraced the idea of regional responsibility

through ECOWAS, as early as the (pre-ICISS) humanitarian interventions
into Liberia, Sierra Leone and Guinea-Bissau in the 1990’s, and into Liberia
again in 2003.
Unlike China and Russia, AU has embraced R2P-based interventions in
principle, but AU also has stressed the necessity for consultation with
regional actors prior to the issuing of the arrest warrants,85 and has
expressed concern about perceived discriminatory selection of ICC cases.86
Indeed, concerned about what they see as an excessive ICC focus on Africa,
the AU directed its member states not to cooperate with ICC arrest war-
rants for both al-Bashir87 and Gaddafi.88 On 14 July 2010, African Union
Commission Chairman Jean Ping, speaking to Agence France-Presse about
the Court’s issuing of three additional arrest warrants for the crime of geno-
cide, one of which was for al-Bashir said, ‘Nothing has changed. This charge
does not solve the problem in Darfur. In fact, it is the contrary…We have no
problem with the ICC and we are against impunity. But the way prosecutor
Moreno-Ocampo is rendering justice is the issue.’89
Despite AU’s support for R2P and its regional implementation, it is
unclear how this will impact norm consolidation at the global level. Even if
AU sets a trend for regional implementation of R2P or international justice,
this by no means necessarily would undermine either. On the contrary, it
might represent an effective way of strengthening both the norm and jurid-
ical complementarity.
84 African Union (AU), ‘African Union Constitutive Act’, 11 July 2000, Article 4(h) and (j),
www.au2002.gov.za/docs/key_oau/au_act.htm.
85 AU, ‘Decision on the Meeting of African Parties to the Rome Statue of the International
Criminal Court (ICC)’, Assembly/AU/Dec.245, 3 July 2009.
86 The Associated Press, ‘African Union Opposes Warrant for Qaddafi’, The New York
Times, 4 July 2011, www.nytimes.com/2011/07/03/world/africa/03african.html.
87 AU, ‘Meeting of African Parties to the Rome Statue of the International Criminal
Court’.
88 The Associated Press, ‘African Union Opposes Warrant for Gadaffi’.
89 ‘AU: Bashir Charges Won’t Help Darfur’, The Washington Times, 14 July 2010, www
.washingtontimes.com/news/2010/jul/14/briefly-93-15958/?page = 1. Regarding the 2008 ICC
arrest warrants for Bashir, Ping stated, ‘While we are trying to extinguish the fire here with
our troops, we don’t understand very well that they chose that moment to put more oil on
the fire by taking the decision.’ ‘AU Stands Against Bashir Arrest’, BBC News, 4 August 2008,
http://news.bbc.co.uk/2/hi/africa/7541488.stm.

The ICC And R2P Norm Consolidation
Clearly, seven years after the UNGA Outcome Document, considerable

international disagreement remains over the meaning of R2P, and over
the appropriate ways in which to implement it and to realise its goals.
To the extent that ICC actions help to delineate and define both the norm’s
content and the appropriate international mechanisms for its application,
the ICC may help advance norm cascade and consolidation.
Genocide, war crimes and crimes against humanity are the common
focus of both R2P and the ICC. But, while this means that the Court implic-
itly is involved in applying R2P in most of its activities, the Court does not
explicitly refer to R2P in its investigations, warrants, or prosecutions. That
the ICC pursues its work without explicit reference to R2P might suggest
either possible ambiguity in terms of what R2P means (lack of specificity),
or reluctance by the Court to embrace too tightly a still controversial prin-
ciple (lack of concordance and/or concern about the principle’s durability).
The Court has been cautious in its actions (for example it did not move
forward on referrals of USA and UK actions in Afghanistan90 and Iraq91),
strongly suggesting sensitivity to its political limitations, as well as a desire
to avoid unnecessary controversy.
Nevertheless, many governments and organizations, and ICC officers
themselves, have recognized that the ICC is well-positioned to play a criti-
cal role, through its actions and jurisprudence, in clarifying the meaning
and boosting the enforcement of R2P. ICC officials are well aware that the
Court’s mandate is inevitably tied to R2P, and have addressed the issue pub-
licly. For example, ICC Chief Prosecutor Luis Moreno-Ocampo said in a
Keynote Address in 2006 on ‘The Responsibility to Protect – Engaging
America’ that, ‘The International Criminal Court could add legitimacy to
the Security Council’s decision to apply the Responsibility to Protect
concept.’92
90 Crimes committed in Afghanistan, a State Party to the Rome Statute, are within the
Court’s jurisdiction, and a preliminary examination began in September 2009, but the Office
of the Prosecutor of the ICC has rarely mentioned the situation since then.
91 International Criminal Court (Office of the Prosecutor), ‘Letter from the Office of the
Prosecutor Re: Iraq’, 9 February 2009, www2.icc-cpi.int/NR/rdonlyres/F596D08D-D810
-43A2-99BB-B899B9C5BCD2/277422/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf.
92 Luis Moreno-Ocampo, ‘Keynote Address’, speech given at The Responsibility to Protect
- Engaging America, Chicago, 16 November 2006, http://r2pcoalition.org/content/view/
61/86/.

Moreno-Ocampo stated that the ICC and the R2P principle have the
potential to strengthen one another given the commonality of both ideas:
Let me review the common ground of both ideas, because the scheme envi-
sioned by the Responsibility to Protect where each individual State has the
primary responsibility to protect its populations from genocide, war crimes,
ethnic cleansing and crimes against humanity, including the prevention of
such crimes, and the idea that the international community will only step in
when a State is failing to do so is very much the scheme retained in Rome for
the International Criminal Court, the same concept, including the gravity
threshold retained for the Responsibility to Protect is also close to our own
legal standards under the Rome Statute.93
The connection between the ICC and R2P, and the capacity for the Court to
contribute to the norm’s consolidation (contributing to specificity, durabil-
ity and concordance), has been recognized repeatedly by world leaders.
Such articulations are important, as they suggest a developing perception
that the ICC and R2P are linked. At a July 2011 General Assembly ‘Informal
Interactive Dialogue on the Role of Regional and Sub-regional Arrange
ments in Implementing the Responsibility to Protect’ such sentiment was
expressed by the representatives of several governments. The EU delega-
tion to the UN, emphasizing the prevention aspect of R2P, stated, ‘The EU is
determined to put an end to the impunity of perpetrators of mass atroci-
ties. International justice, and in particular the International Criminal
Court, can be a powerful tool to prevent the most serious human rights
violations as are other so-called transitional justice mechanisms in accor-
dance with international standards.’94
The Swedish Permanent Representative, also addressing prevention,
stressed that expansion of ICC membership strengthens the capacity of the
international community to uphold R2P:
As we heard in the statement made earlier by the distinguished representative
from the European Union, the EU does – too – focus on the preventive aspect
of R2P. In this regard we must acknowledge the link between prevention and
accountability, and the closely related role of the International Criminal Court.
93 Ibid.
94 Acting Head of Delegation of the European Union to the United Nations Pedro
Serrano, ‘Intervention on Behalf of the European Union’, speech given at UNGA Informal
Interactive Dialogue on the Role of Regional and Sub-regional Arrangements in
Implementing the Responsibility to Protect, 12 July 2011, p. 3-4, http://responsibilityto
protect.org/EU%20Stmt.pdf.

As we have done before, we strongly urge the International Community to

ratify the Rome Statute and to cooperate with the ICC.95
Other governments have concurred with the notion that the accountability
for atrocity crimes before the ICC strengthens R2P. Liechtenstein Permanent
Representative Wenevesser (also outgoing President of the Assembly of
State Parties to the ICC) stated:
Finally a word on accountability: We do believe that having accountability
mechanisms in place, in particular the International Criminal Court, can be
important in implementing the R2P concept, in particular in relation to situa-
tions where a State is not a state party to the Rome Statute; that is where the
Security Council can refer a situation to the Court. However, this can only be
effective if the Council is also determined to take follow-up action on a referral
and to enforce cooperation with action taken by the ICC.96
Japan stressed the need for universal ICC membership to enforce R2P:
From this point of view, it is critical that the Security Council takes action in a
timely and effective manner. Preventive measures and early warning at the
initial stage are also important. In this respect, universalization of the ICC
through expanding its membership will play a crucial role for the prevention
of the four serious crimes which the concept of the responsibility to protect is
supposed to address. It is essential to ensure effective implementation of pros-
ecution and punishment of such crimes in accordance with the Rome Statute
to maximize ICC’s deterrence effect. Accordingly, States Parties to the Statute
should prosecute and punish those crimes based upon the principle of com-
plementarity, and implement in good faith ICC’s requests for their coopera-
tion with the Court. We should continue to discuss among the Member States
the measure to better utilize these existing mechanisms.97
The Swiss representative also stressed the ICC’s central role:
First, the fight against impunity goes hand in hand with prevention. If the
preventive impact of international justice is to be strengthened, a set of
95 Ambassador of Sweden Mårten Grunditz, ‘Statement by Swedish PR’, speech given at

UNGA Informal Interactive Dialogue on the Role of Regional and Sub-regional Arrangements
in Implementing the Responsibility to Protect, 12 July 2011, http://responsibilitytoprotect
.org/Sweden(3).pdf.
96 Ambassador of the Principality of Liechtenstein Christian Wenaweser, ‘Statement by
H.E. Ambassador Christian Wenaweser’, speech given at UNGA Informal Interactive
Dialogue on the Role of Regional and Sub-regional Arrangements in Implementing the
Responsibility to Protect, 12 July 2011, p. 3, http://responsibilitytoprotect.org/Liechtenstein
.pdf.
97 Ambassador of Japan Tsuneo Nishida, ‘Remarks by H.E. Tsuneo Nishda’, speech given
at UNGA Informal Interactive Dialogue on the Role of Regional and Sub-regional
Arrangements in Implementing the Responsibility to Protect, 12 July 2011, p. 1, http://
responsibilitytoprotect.org/Japan%20stmt.pdf.

instruments must be developed that enable impunity to be combated more
systematically. Recently, the international community has for example repeat-
edly used investigation committees and fact-finding commissions. It is impor-
tant from the outset that the mandates of such commissions are formulated in
unambiguous terms, that their procedures are well designed and that the
nature of any links they may have to judicial bodies, such as the International
Criminal Court, is clearly defined.98
Specific ICC actions to date pertaining to Darfur and Libya seem to have
positively impacted all three of Legro’s criteria (specificity, durability and
concordance). Sudan was the first case referred to the ICC by the UNSC,
due to the violence in Darfur. Sudan was also the first ICC non-State Party
to be referred, and the Sudan referral was the first of a standing govern-
ment, that of al-Bashir. As a result, the Darfur situation enabled the Court,
through its actions, to help define the meaning and application of R2P.99
The Darfur case set legal and operational precedents concerning issues
such as complementarity and enforcement which – to the extent that they
help define these principles more clearly – could impact the Court’s future
efficacy, while enhancing R2P’s specificity, durability and concordance.
The way the Court puts into practice the principle of complementarity
could be extremely important for R2P, as it addresses the very issue of inter-
vention and state sovereignty which has been at the core of resistance to
R2P norm endorsement. Complementarity came into existence precisely
because many prospective state parties feared that the ICC would become
a supranational criminal court that might usurp domestic control of crimi-
nal prosecutions. Complementarity, carefully implemented to assuage such
concerns, could provide states with clarity regarding respect for state sover-
eignty, and thereby enhance the prospects for norm consolidation.
Darfur
Darfur was the first ICC case in which complementarity was an issue. This
is because Sudan created special tribunals to try individuals suspected of
war crimes, but failed to actually prosecute the alleged criminals of concern
98 Ambassador of Switzerland Paul Seger, ‘Declaration of M. Paul Seger, Permanent

Representative’, speech given at UNGA Informal Interactive Dialogue on the Role of Regional
and Sub-regional Arrangements in Implementing the Responsibility to Protect (unofficial
translation), 12 July 2011, p. 3-4, http://responsibilitytoprotect.org/Switzerland%20Stmt(1)
.pdf.
99 For a complete and up to date list of the ICC cases in Sudan, see www.icc-cpi.int/
Menus/ICC/Situations + and + Cases/Situations/Situation + ICC + 0205/.

to the ICC. Under complementarity, if domestic processes regarding alleged

war crimes are deemed sufficient by the ICC, then the ICC cannot exercise
jurisdiction. The ICC may, however, determine that a case should come
before it under the complementarity principle if national proceedings were
initiated for the ‘purposes of shielding the person from criminal responsi-
bility’ or were not conducted independently or impartially.
In the ICC case against Thomas Lubanga Dyilo, recently convicted of war
crimes in the Democratic Republic of Congo, the Court had determined
that national proceedings must ‘encompass both the person and the
conduct which is the subject of the case before the Court.’100 Although the
special Sudanese tribunals have tried some low-level suspects, they have
not gone after Ahmad Muhammad Harun and Ali Muhammad Ali Abd-
Al-Rahman (Ali Kushayb), whose ICC arrest warrants were issued in
May 2007 for alleged war crimes and crimes against humanity. Because the
Sudanese courts are not trying the suspects cited by the ICC, nor are they
addressing the specific crimes cited in the ICC’s case, the ICC may move
forward with these cases without violating the principle of complementar-
ity.101 The care which the Court has shown to justify when it may and
may not prosecute might reasonably be expected to allay the fears of those
concerned that the Court might overreach by adopting an excessively
broad conception of complementarity.
The Darfur case also shows that the ICC may contribute to greater
specificity in defining the precise contours of specific atrocity crimes and
when they have occurred. For example, there is an ongoing debate concern-
ing the distinction between genocide and crimes against humanity. The
dividing line between the two remains blurred, as jurisprudence surround-
ing crimes against humanity has grown and continues to evolve, and geno-
cide, in Wald’s words, has remained ‘textually static’ but is ‘interpretively
somewhat fluid.’102 The lack of consensus regarding what constitutes
100 ICC (OTP), ‘Fifth Report of the Prosecutor of the International Criminal Court
Pursuant to UNSCR 1593 (2005)’, 7 June 2007, p. 2, http://www.iccnow.org/documents/OTP
_ReportUNSC5-Darfur_07june07_eng.pdf.
101 Ibid.
102 Patricia M. Wald, ‘Genocide and Crimes Against Humanity’, Washington University
Global Studies Law Review, 6/3: 621-33 (2007). A lack of consensus regarding the distinction
between genocide and crimes against humanity was evident in the divergent opinions of
ICTY judges. Schabas explains, ‘judgments of different trial chambers of the ICTY have taken
the [genocide] law in opposite directions.’ For example, one ruling concludes that ‘forcible
transfer of a population’ can constitute genocide while another ruling states that only physi-
cal and biological destruction constitute genocide. See William A. Schabas, ‘Has Genocide

genocide is evident in the different assessments of the situation in Darfur.

In May 2004, for example, the US State Department found evidence of
ethnically-targeted killings, rape and displacement, and defined these as
genocide. The US brought the issue to the UNSC, which established the
International Commission of Inquiry into Darfur, whose report concluded
that the Sudanese government was guilty of crimes against humanity, but
not of genocide.
Several weeks after the Darfur Commission released its report, the UNSC
referred the case to the ICC. In 2005, Prosecutor Moreno-Ocampo reported
to the UNSC that he found evidence of mass killing, rape and other serious
acts of gender violence in Darfur, and in 2008 issued an arrest warrant for
President al-Bashir for three counts of genocide. However, the following
year, ICC judges found, by a ruling of two-to-one, that the Prosecutor had
failed to provide reasonable grounds to believe that the Government of
Sudan acted with specific intent to destroy these groups. The Prosecutor
appealed, arguing that the judges’ standard for genocide was too high, and
in 2010, ICC judges issued a second warrant for al-Bashir, citing three counts
of genocide.’103
Clearly, there is an evolving jurisprudence on atrocity crimes, to which
the ICC may make important contributions. ICC actions also have shown
how certain principles, such as complementarity, may work in practice.
While ICC proceedings so far have raised as many questions as they have
answered, the existence of an authoritative permanent ICC may, over time,
help to settle debates surrounding atrocity crimes and intervention. By so
doing, Court decisions have significant potential to strengthen specificity
and hence to help consolidate R2P.
Libya
Any crisis for which military or non-military intervention is considered

by the UNSC exposes disagreements among nations, but also brings
Been Committed in Darfur? The State Plan or Policy Element in the Crime of Genocide’ in
Ralph J. Henham and Paul Behrens (eds.), The Criminal Law of Genocide: International,
Comparative and Contextual Aspects (Hampshire, U.K.; Burlington: Ashgate, 2007). See also
William A. Schabas, ‘Genocide, Crimes Against Humanity and Darfur: The Commission of
Inquiry’s Findings on Genocide’, Cardozo Law Review, 27/4 : 1703-21 (2006).
103 Arieff et al, ‘International Criminal Court Cases in Africa’, p. 15; see also Antonio
Cassese, ‘Flawed International Justice for Sudan’, 15 July 2008, www.project-syndicate.org/
commentary/cassese4/English.

opportunities to bridge them and to define appropriate intervention

modalities. UNSC Resolution 1973 explicitly invoked R2P as it authorized
intervention in Libya.104 While the Security Council had embraced R2P in
earlier resolutions, the Security Council resolutions on Libya were the first
time the Council took coercive action against a government based on its
failure to fulfil its responsibility to protect its population.
It is important to recognize that it was in this context that the UNSC
engaged the ICC as a central mechanism in the Council’s efforts to stop the
violence and to punish perpetrators of atrocity crimes. The ICC’s issuance
of arrest warrants set a precedent for future such use of the Court for R2P-
related actions. Equally important is the fact that several Security Council
representatives stated explicitly that the ICC’s investigations, arrest war-
rants and proceedings would be useful tools in quelling the violence in
Libya and preventing future violence.
A report to the UNSC from Prosecutor Moreno-Ocampo’s office stated
that:
arresting those who ordered the commission of crimes will contribute to the
protection of civilians in Libya because it will deter on going crimes. It will
deter crimes by removing those who ordered the crimes, and by sending a seri-
ous message to other potential perpetrators, in Libya and in other situations,
that the international community will not condone such crimes.105
While the violence in Libya did not stop following the issuance of ICC arrest
warrants, most UNSC members described the Court as a useful instrument
in stopping and preventing violence. The main exception to this was China,
who supported using the ICC to end impunity and provide justice, but
refrained from making any statements that might suggest a broader
embrace of the Court or its utility in preventing R2P violations. Indeed,
China explicitly stated that its view of the Court remained unchanged from
its long held stance of noncooperation.106
The Russian position, interestingly, was more open. Russian Ambassador
Karev stated that if the Libyan Transitional National Council (TNC) proved
incapable of adequately following through with internal investigations of
crimes committed, that the ICC should take over. He said he had ‘nagging
doubts that the conduct of such an investigation in an appropriate fashion
104 S/RES/1973.
105 ICC (OTP) ‘Statement to the United Nations Security Council on the Situation in the
Libyan Arab Jamahiriya, Pursuant to UNSCR 1970 (2011)’, 4 May 2011, p. 6, www.icc-cpi.int/
NR/rdonlyres/0BDF4953-B5AB-42E0-AB21-25238F2C2323/0/OTPStatement04052011.pdf.
106 S/PV.6528, 4 May 2011.

can be possible, at least in the near future, in a country with a devastated

state structure and in the virtual absence of normally functioning judicial
and law enforcement bodies,’ and that under these circumstances that the
ICC should assist in the internal investigations.107
It is, of course, significant that the language used by actors while discuss-
ing R2P parallels the language used when referring a state to the Court.
Even when a UNSC resolution does not explicitly invoke R2P it may still
strengthen the legitimacy of international military or judicial intervention.
The explicit invocation of R2P in Resolution 1973, of course, was one of the
most unequivocal statements made by the UNSC affirming the responsi
bility to protect. The outcome was aided by the strong leadership shown by
many countries, as well as by the Arab League, the Gulf Cooperation
Council, the Organization of the Islamic Conference, the African Union,
and Libya’s own representatives, speaking with one voice against the
regime’s violent suppression of its people.108
Statements regarding the UN Security Council’s decision to intervene
in Libya illustrate how the international community very consciously
employed the ICC as an instrument of R2P. For example, on 28 February
2011, during the 16th session of the UN Human Rights Council Kevin Rudd,
Foreign Minister of Australia stated:
We have seen the birth of the International Criminal Court. And we have seen
the adoption of the international principle of R2P. As a community of nations,
we have agreed that we will act to prevent and respond to genocide, war
crimes, crimes against humanity and ethnic cleansing. Last week, I wrote to
the President of the Security Council, requesting that Libya be referred to the
International Criminal Court. Over the weekend we saw UN Security
Resolution 1970, which invoked both the responsibility to protect and referred
the situation in Libya to the International Criminal Court.109
107 Ibid, p. 7.
108 League of Arab States, ‘The Outcome of the Council of the League of Arab States
Meeting at the Ministerial Level in its Extraordinary Session on the Implications of the
Current Events in Libya and the Arab Position’, 12 March 2011, http://responsibilitytoprotect
.org/Arab%20League%20Ministerial%20level%20statement%2012%20march%202011
%20-%20english(1).pdf; Gulf Cooperation Council, ‘Statement on Situation in Libya on the
Session (118) of the Ministerial Council’, 7 March 2011; Organization of the Islamic Conference,
‘Ihsanoglu Support No-Fly Decision at OIC Meeting on Libya, Calls for an Islamic
Humanitarian Programme In and Outside Libya’, 8 March 2011, www.oic-oci.org/topic
_detail.asp?t_id = 5031; Ambassador of the Libyan Arab Jamahiriya Ibrahim Dabbashi,
S/PV.6491, p. 7-8.
109 S/RES/1970.

The ability of the ICC to respond decisively and swiftly to the call to action
in 2011 regarding Libya likely may enhance future decisions to rely on the
Court for prevention. The speed with which the ICC responded to the UNSC
referral demonstrated that the Court was capable of acting rapidly to
respond to an on going crisis. In the past, preliminary investigations have
often taken months and sometimes years, but in the Libyan case the Court
completed its preliminary investigation and decided to open a formal
investigation in only five days. The arrest warrants for Gaddafi, his son and
spy chief (the latter two are now under arrest, but have not been delivered
to ICC)110 were also speedily issued. Proponents of intervention lauded the
swift and decisive action by all parties involved, claiming the UNSC referral
to the ICC sent a clear signal to tyrants that their crimes would not go
unpunished and that the Court was the legitimate arbiter of justice. This
action was a crucial step toward not only legitimizing and strengthening
the ICC, but also legitimising and strengthening R2P, and demonstrating
how the Court could be an instrument of R2P in situations like Libya.
Some critics of the Court, of course, have argued that Resolution 1970
actually impeded a resolution, claiming that the ICC arrest warrant might
have prevented Gaddafi from seeking safe haven in another state.111 These
critics argue that being sought by the ICC gave Gaddafi the incentive to
fight to the end, rather than to seek a negotiated exit. However, the facts do
not support this argument; the Obama administration recognized this risk,
and indicated to Russian President Medvedev that if Gaddafi voluntarily
left Libya, his safe passage to another country would be guaranteed.112
This same issue could re-emerge should Russian and Chinese resistance be
overcome regarding the situation in Syria. UN agencies, such as the Office
of the High Commissioner of Human Rights, and NGOs, such as Human
Rights Watch and International Federation for Human Rights, have been
110 Since Saif Gaddafi’s arrest, the Libyan government and ICC have struggle over who
will try him. Al-Jazeera, ‘Libya rules out ICC trial for Saif al-Islam’, 9 April 2012, www.aljazeera
.com/news/africa/2012/04/2012499216767703.html. That Saif is still in the custody of the
Zintan fighters who initially captured him and who have stated they will transfer him to
Tripoli only if he is not sent to The Hague further complicates the issue. Libyan Herald
‘Zintan Prepared to Hand Over Saif Al-Islam’, 18 April 2012, www.libyaherald.com/
zintan-prepared-to-hand-over-saif-al-islam/.
111 Brett D. Schaefer, ‘International Criminal Court Complicates Conflict Resolution in
Libya’, 9 June 2011, www.heritage.org/research/reports/2011/06/international-criminal
-court-complicates-conflict-resolution-in-libya; Robert Booth, ‘Muammar Gadaffi’s Exit
Hindered by UN Resolution, Law Experts Warn’, The Guardian, 29 March 2011, www
.guardian.co.uk/world/2011/mar/29/muammar-gaddafi-exit-un-resolution.
112 Ibid, Schaefer.

pressuring the UNSC to consider stronger action against President Assad,

including possibly referring him and others to the ICC.113
ICC actions regarding Uganda have faced the same critique that arrest
warrants may complicate peace negotiations by giving those being sought
reason to dig in their heels. Lord’s Resistance Army leader Joseph Kony,
indeed, stated that peace negotiations would not go forward unless the ICC
warrant for his arrest was removed.114 Kony’s position led ICC spokesperson
Matthew Brubacher, to declare simply,
We don’t have anything to do with those negotiations. It is up to the govern-
ments of Uganda, Sudan and Democratic Republic of Congo to comply with
their legal obligations. We have agreements with the three states. They are
obligated to give effect to the arrest warrants, and we are confident that they
will honour their joint commitment to do so.115
The Libyan intervention ended successfully, and its success was a victory
for the R2P principle. The ICC’s role in this process positively impacted all
three of Legro’s dimensions of specificity, durability, and concordance,
arguably thereby furthering R2P norm consolidation. Referral of Libya to
the Court was unanimously approved by the UNSC and sanctioned by a
diverse assortment of important actors, thereby increasing R2P’s concor-
dance and the likeliness that similar action may be carried out in the future.
Also, the norm was able to withstand a test of applicability and implemen-
tation, showing evidence of durability in the face of potential challenges.
Insofar as the intervention in Libya was seen by a diverse array of actors
as legitimate, it advanced a post-Westphalian conception of ‘sovereignty
as responsibility.’ While, as has been noted, differences remain, even
among the P-5 – and the Security Council has failed to follow through with
113 Martin Chulov, ‘Syria: UN Lists Names of Assad Officials who could Face ICC
Prosecution’, The Guardian, 18 August 2011, www.guardian.co.uk/world/2011/aug/18/syria
-un-assad-officials-icc-prosecution; International Federation for Human Rights, Bashar Al
Assad: Criminal Against Humanity, July 2011, www.fidh.org/IMG/pdf/reportsyria2807eng
.pdf.
114 Voice of America, ‘Ugandan Rebel Leader Wants ICC Arrest Warrant Lifted
Before Peace Deal’, 22 August 2008, www.voanews.com/english/news/a-13-2008-08-22-voa44
.html.
115 Alfred Wasike, ‘I’m Not a Terrorist: Says Kony’, 24 May 2006, http://battlingterrorism
.com/modules.php?name = News&file = article&sid = 320. This statement would seem to
contradict Prosecutor Moreno-Ocampo’s statement in October 2005 when an agreement
was signed ending Sudanese support for the LRA: ‘We engaged with the government of
Sudan to discuss the interaction of how to coordinate activities to control the LRA. And in
fact in October 2005, the government of the Sudan signed an agreement with the office of
the Prosecutor in which they were ready to execute the arrest warrants against the LRA.’
Moreno-Ocampo, ‘Keynote Address’.

similar action regarding Syria – the Libyan operation’s success signi

ficantly strengthens the argument of R2P supporters that international
institutions – including the ICC in a central capacity – can realize the goals
of R2P.
Conclusion
The success of the 2011 Libyan intervention was a victory for both the
International Criminal Court and for R2P. It was, however, but one impor-
tant step toward R2P norm consolidation. It – like the current struggle
between the ICC and the Libyan authorities over Saif Gaddafi – also reveals
how dependent the Court remains upon the Security Council, and there-
fore subservient to the Council’s willingness and ability to enforce R2P.
For progress to continue, the great powers will need to find common ground
in future human rights crises. While the UNSC voted unanimously to refer
Colonel Gaddafi to the Court and subsequently approved military interven-
tion, the fact remains that three P-5 states still are not parties to the Rome
Statute. Furthermore, as we have seen, Russian and Chinese resistance to
using the Council to implement R2P assertively remains, and to date has
impeded decisive action in Syria, where thousands have already perished.
Should Syrian atrocities continue to go unaddressed by the UNSC,
the momentum gained for both the ICC and R2P could be lost. Consoli
dation of R2P as a robust norm – and of the ICC as a key instrument for its
realization – remains a work in progress.


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Global Responsibility to Protect 4 (2012) 275–308 brill.

The International Criminal Court and

Michael Contarino, Melinda Negrón-Gonzales and Kevin T. Mason

The responsibility to protect (R2P) is a norm-in-formation. While the

1 A/RES/60/1, 16 September 2005, paragraphs 138-40; S/RES/1674, 28 April 2006;

© Koninklijke Brill NV, Leiden, 2012 DOI 10.1163/1875984X-00403002

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international actions,2 R2P nevertheless remains controversial.3 Critics of

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6 ‘Rome Statute of the International Criminal Court’, A/CONF.183/9, Article 5(1), p. 8;

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International Norm Consolidation

In their seminal work on the norm lifecycle, Finnemore and Sikkink10

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13 ICISS, The Responsibility to Protect.

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the former and present UN Secretaries General,20 some governments con-

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A durable norm becomes a part of the international architecture, and its

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Nevertheless, R2P represents a new and fundamental challenge to durable

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undoubtedly motivated to abolish slavery because of material or political

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Declaration of Human Rights obliges states to respect the natural rights of

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and human security, shall be progressively resolved in favour of supra­

Challenges To R2p Norm Consolidation

Some aspects of R2P are not controversial. There is broad consensus on

33 ‘The ECOWAS Conflict Prevention Framework’, MSC/REG.1/01/08, 16 January 2008,

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Document by the UNGA on 16 September 2005,35 Russia, China, and the

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and Russia, as well as by a few other powerful governments, typically

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43 Ambassador of China Wang Min, S/PV. 6427, 22 November 2010, p. 24.

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48 Ambassador of Russia Vitaly Churkin, S/PV.6498, p. 8.

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51 Risse et al, The Power of Human Rights.

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it should fully respect Syria’s sovereignty, independence and territorial

56 Ambassador of China Li Baodong, S/PV.6627, 4 October 2011, p. 5; for the wording of

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Churkin’s view that a confrontational approach might be counterproduc-

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69 Ibid, Ambassador of the United Kingdom Sir Mark Lyall Grant, p. 7.

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leave the other awkwardly isolated on the Council), consolidation of R2P is

73 A/63/PV.97; A/63/PV.98; A/63/PV.99, 24 July 2009; A/63/PV.100, 28 July 2009; A/63/

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78 Ambassador of France Jean-Pierre Lacroix, A/63/PV.97, p. 9.

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security.’84 Africans have embraced the idea of regional responsibility

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The ICC And R2P Norm Consolidation

Clearly, seven years after the UNGA Outcome Document, considerable

and human security, shall be progressively resolved in favour of supra

similar action regarding Syria – the Libyan operation’s success signi